Decision Date: 09/08/95 Archive Date: 01/17/96
DOCKET NO. 93- 07 165 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office & Insurance
Center in Philadelphia, Pennsylvania
THE ISSUES
1. Entitlement to service connection for the cause of the
veteran’s death.
2. Entitlement to an increased rating for residuals of a
splenectomy, evaluated as 30 percent disabling, for the
purpose of accrued benefits.
3. Entitlement to an increased rating for residuals of an
abdominal wound, involving Muscle Group XIX, evaluated as 10
percent disabling, for the purpose of accrued benefits.
4. Entitlement to an increased rating for residuals of a
right thigh wound, involving Muscle Group XIII, evaluated as
10 percent disabling, for the purpose of accrued benefits.
5. Entitlement to an increased rating for residuals of a
left thigh wound, involving Muscle Group XIV, evaluated as
10 percent disabling, for the purpose of accrued benefits.
6. Entitlement to an increased (compensable) rating for
residuals of a right flank wound, for the purpose of accrued
benefits.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
George E. Guido Jr., Counsel
INTRODUCTION
The appellant is the veteran’s surviving spouse. The
veteran had active military service from June 1943 to April
1946.
This appeal is before the Board of Veterans’ Appeals (Board)
from a July 1992 rating decision.
A hearing was held in June 1993 before the undersigned Member
of the Board who is making the final determination in this
appeal.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that with resolution of reasonable
doubt the service-connected disabilities, particularly
residuals of splenectomy, contributed to cause the veteran’s
death.
The appellant’s representative argues that the veteran
experienced pain resulting from his service-connected
disabilities, and that higher evaluations were warranted
prior to his death.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104 (West
1991), after review and consideration of all the evidence and
material of record in the veteran’s claims file and for the
following reasons and bases, the Board decides that the
preponderance of the evidence is against the claim of service
connection for the cause of the veteran’s death and the
claims of increased ratings for service-connected
disabilities, for the purpose of accrued benefits.
FINDINGS OF FACT
1. In November 1991 at age 67, the veteran died of an acute
myocardial infarction.
2. At the time of his death, the adjudicated service-
connected disabilities were: residuals of a splenectomy, 30
percent disabling; residuals of an abdominal shell fragment
wound, 10 percent disabling; residuals of a right thigh shell
fragment wound, 10 percent disabling; residuals of a left
thigh shell fragment wound, 10 percent disabling; and
residuals of a right flank wound, noncompensably disabling.
The combined service-connected disability rating, applying
the bilateral factor, was 50 percent.
3. Cardiovascular disease was not shown to be present
coincident with service, it was not the result of injury
suffered or disease contracted during service, it did not
become manifest to a compensable degree within one year from
the date of separation from service and it was not etiologic
to service-connected disabilities.
4. A service-connected disability did not cause or
contribute substantially or materially to the cause of the
veteran’s death.
5. The maximum schedular rating for residuals of a
splenectomy is 30 percent and the disability did not present
such an exceptional or unusual picture as to render
impractical the application of the regular schedular
standards.
6. The residuals of an abdominal wound, involving Muscle
Group XIX, produced no more than moderate impairment of the
muscles of the abdominal wall and the disability did not
present such an exceptional or unusual picture as to render
impractical the application of the regular schedular
standards.
7. The residuals of a right thigh wound, involving Muscle
Group XIII, produced no more than moderate impairment of the
muscles of the posterior thigh and the disability did not
present such an exceptional or unusual picture as to render
impractical the application of the regular schedular
standards.
8. The residuals of a left thigh wound, involving Muscle
Group XIV, produced no more than moderate impairment of the
muscles of the anterior thigh and the disability did not
present such an exceptional or unusual picture as to render
impractical the application of the regular schedular
standards.
9. The residuals of a right flank wound produced no
discernible function loss and the disability did not present
such an exceptional or unusual picture as to render
impractical the application of the regular schedular
standards.
CONCLUSIONS OF LAW
1. Cardiovascular disease was not incurred or aggravated by
service, service connection for cardiovascular disease may
not be presumed to have been incurred therein, and it was not
proximately due to or the result of service-connected
disabilities. 38 U.S.C.A. §§ 1110, 1112(a), 5107
(West 1991); 38 C.F.R. §§ 3.303, 3.310(a) (1994).
2. A disability incurred in or aggravated by service did not
cause or contribute to the cause of the veteran’s death.
38 U.S.C.A. §§ 1310, 5107 (West 1991); 38 C.F.R. § 3.312
(1994).
3. Neither the schedular nor the extra-schedular criteria
for residuals of a splenectomy were met for the purpose of
accrued benefits. 38 U.S.C.A. §§ 1155, 5107, 5121; 38 C.F.R.
§ 3.321(b)(1), Part 4, §§ 4.7, 4.117, Diagnostic Code 7706
(1994).
4. Neither the schedular nor the extra-schedular criteria
for residuals of an abdominal wound, involving Muscle Group
XIX, were met for the purpose of accrued benefits.
38 U.S.C.A. §§ 1155, 5107, 5121; 38 C.F.R. § 3.321(b)(1),
Part 4, §§ 4.7, 4.40, 4.56, 4.73, Diagnostic Code 5319
(1994).
5. Neither the schedular nor the extra-schedular criteria
for residuals of a right thigh wound, involving Muscle Group
XIII, were met for the purpose of accrued benefits.
38 U.S.C.A. §§ 1155, 5107, 5121; 38 C.F.R. § 3.321(b)(1),
Part 4, §§ 4.7, 4.40, 4.56, 4.73, Diagnostic Code 5313
(1994).
6. Neither the schedular nor the extra-schedular criteria
for residuals of a left thigh wound, involving Muscle Group
XIV, were met for the purpose of accrued benefits.
38 U.S.C.A. §§ 1155, 5107, 5121; 38 C.F.R. § 3.321(b)(1),
Part 4, §§ 4.7, 4.40, 4.56, 4.73, Diagnostic Code 5314
(1994).
7. Neither the schedular nor the extra-schedular criteria
for residuals of a right flank wound were met for the purpose
of accrued benefits. 38 U.S.C.A. §§ 1155, 5107, 5121;
38 C.F.R. § 3.321(b)(1), Part 4, §§ 4.7, 4.40, 4.56, 4.118,
Diagnostic Codes 7805, 5321 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
After review of the record and of the appellant’s arguments,
the Board finds that all the relevant facts have been
properly developed and no further assistance to her is
required to comply with the duty to assist under 38 U.S.C.A.
§ 5107(a).
Factual Background
The service medical records disclose that, in September 1944,
the veteran was wounded in combat by a mortar shell,
sustaining injuries to the chest, abdomen and thighs. A
splenectomy was done and the chest and thigh wounds were
subjected to secondary closure. He was discharged from the
hospital to non-combat duty in December 1944. On separation
examination in April 1946, there were multiple scars on the
abdomen and thighs, including a splenectomy scar on the left
side of the abdomen. The service medical records contain no
complaint, finding or history of cardiovascular disease.
The veteran’s original application for VA compensation for
his wounds was received in May 1946. In a May 1946 rating
decision, the RO granted service connection for the wounds
and assigned a 100 percent rating based on convalescence that
remained in effect until April 1947.
On initial VA examination in September 1946 and on VA
examination in April 1947, the wounds were described as
follows: two scars, one inch long, on the right chest wall or
flank; a left chest scar above the spleen; a surgical scar
without adhesion for removal of the spleen; an anterior left
thigh scar about 1 inch by one-half inch; and a posterior
right thigh scar about 2 inches by one-half inch. All scars
were firm, well healed and non-tender. X-rays of the legs
and the abdomen were negative.
In a May 1947 rating decision, the RO terminated the
convalescent rating and assigned separate ratings for the
disabilities as follows: residuals of splenectomy, 30 percent
under Diagnostic Code 7706; residuals of an abdominal wound,
involving Muscle Group XIX, 30 percent under Diagnostic Code
5319; residuals of a right thigh wound, involving Muscle
Group XIII, 10 percent under Diagnostic Code 5313; residuals
of a left thigh wound, involving Muscle Group XIV, 10 percent
under Diagnostic Code 5314, and a noncompensable rating for
residuals of a right flank wound. The combined rating,
applying the bilateral factor, was 60 percent.
On VA examination in May 1948, the scars on the right flank
were described as superficial. There was no atrophy, muscle
loss, limitation of motion or bone or nerve injury associated
with the scars on the thighs.
In each of the above examinations, the cardiovascular system
was evaluated as normal.
In a September 1948 rating decision, the 30 percent rating
for residuals of an abdominal wound was reduced to 10
percent, decreasing the combined rating to 50 percent. The
residuals of a right flank wound were evaluated under
Diagnostic Code 7805 and remained noncompensably disabling.
There were no changes in the ratings of the other
disabilities. There was no other adjudicative action on
rating the disabilities until the veteran filed claims for
increased ratings that was received in November 1991 and he
died that same month.
The appellant’s application for dependency and indemnity
compensation, including accrued benefits and death
compensation, was received in January 1992.
I. Service Connection for the Cause of the Veteran’s Death
The death certificate shows that the veteran was born in
April 1924 and died in November 1991. Sepsis was listed as
the cause of death.
Ohio Valley Medical Center records disclose that in November
1991 the veteran was admitted in an unconscious state
following cardiac arrest. According to the appellant, they
had been at a hotel when the veteran went out for coffee and
he was found unconscious outside the hotel. The emergency
squad found him in ventricular fibrillation and he was
admitted to the hospital in critical condition.
Medical history included glaucoma, diabetes and cataracts
that were diagnosed in 1987; myocardial infarctions in 1979
and 1986; duodenal ulcer, diagnosed in 1988; deep vein
thrombosis of the right leg, removed in 1984; fungal
infection of the esophagus in 1990; cardiac catherization in
1986; abdominal aortic aneurysm surgery in 1981; occasional
headaches; hypercholesterolemia; hypertension; and
splenectomy during military service.
During the hospitalization, the veteran remained comatose and
unresponsive. Blood tests were positive for myocardial
infarction. A chest X-ray revealed cardiomegaly due to
congestive heart failure and an electrocardiogram (EKG)
showed marked ischemia, old inferior myocardial infarction
and left atrial abnormalities. Treatment included right
femoral exploration and embolectomy that improved circulation
in the right foot. The postoperative diagnosis was ischemic
foot secondary to small emboli and arteriosclerotic occlusive
disease of the popliteal artery of the right lower extremity.
The prognosis remained very poor and grave and his condition
continued to deteriorate with a drop in blood pressure and
after seven days he died. The final diagnoses were: acute
myocardial infarction with cardiac arrest, acute respiratory
failure secondary to cardiac arrest, ischemic foot secondary
to small emboli, atherosclerotic occlusive disease of the
popliteal artery, congestive heart failure, coma with anoxic
encephalopathy, probable aspiration pneumonia, ventricular
fibrillation and diabetes mellitus, type II.
Records of Harrisburg Hospital disclose that in November 1981
an arteriogram revealed aneurysms in the abdominal aorta and
iliac arteries. During surgery for removal of the aneurysms,
a small bowel tumor on the ileum was found. Microscopic
examination of the tumor revealed a vein entering the edge of
the lesion that was described as an accessory spleen. The
pertinent diagnoses were accessory spleen and abdominal
aortic aneurysm. In September 1984, the veteran was
hospitalized with a four day history of right calf and foot
pain. There was also a history of a myocardial infarction in
1979. An arteriogram revealed occlusion in the right
popliteal artery 4 centimeters proximal to the right knee
joint. He then underwent a successful embolectomy.
Records of the Polyclinic Medical Center disclose that
cardiac catherization in March 1986 revealed coronary artery
disease and in July 1991 a stomach biopsy from an
esophagogastroduodenoscopy (EGD) for evaluation of peptic
ulcer disease revealed no significant pathologic changes.
August 1991 records of Floyd Memorial Hospital reveal normal
vascular study of the veins of the lower extremities.
Progress records from 1988 to 1991 of Pendrak, Kandra,
Fierer, Kuskin Assoc., of Internal Medicine disclose that the
veteran was followed primarily for cardiac and
gastrointestinal problems.
The appellant testified that during the veteran’s final
illness Dr. Kuskin told her that the veteran was having
difficulty fighting infections due to the lack of a spleen.
June 1993 hearing transcript (T.) 6. She explained that she
talked with Dr. Kuskin on the phone and that although Dr.
Kuskin did not treat the veteran during his final illness he
had treated him since 1986. T. 7. Also she expressed the
opinion that perhaps the aneurysms were related to the
splenectomy, but no physician had related the two. T. 5-6.
In April 1995, the Board referred the matter to Colin M.
Bloor, M. D., Professor of Pathology and Director of the
Molecular Pathology Graduate Program at the University of
California, San Diego, School of Medicine, for an independent
medical opinion regarding (1) whether the medical data,
reported in the terminal hospital record of Ohio Valley
Medical Center, support the conclusion that sepsis caused the
veteran's death; and if not, on the basis of the record, what
was the cause of the veteran's death and (2) did the service-
connected splenectomy contribute to the cause of the
veteran's death due either to sepsis or any other fatal
disease process?
After reviewing the records, Dr. Bloor concluded that the
cause of death was congestive heart failure secondary to an
acute myocardial infarction and that the service-connected
splenectomy did not contribute to any fatal disease process.
In the written report to the Board, Dr. Bloor stated:
...[T]he hospital record [for admission in November
1991] shows that the patient’s main clinical problems
comprised an acute myocardial infarction following cardiac
arrest and coma with significant cerebral ischemic changes.
Supporting evidence for these problems included the history
of cardiac arrest and collapse nearby the hotel where the
patient was staying, the EKG traces obtained on admission to
the hospital, the enzyme elevations...and the EEG traces
obtained on admission. There was no evidence of sepsis as
the time of admission.
As for the remainder of the hospital stay, Dr. Bloor
explained that the decreasing pO2 starting on 11/28/91 and
continuing until death had two possible explanations. One
was increased severity of congestive heart failure secondary
to evolving acute myocardial infarction. The second was
development of pneumonia. As for pneumonia, he did not
consider it diagnostic of sepsis. He then stated that:
Absence of the spleen and accessory spleen would have no
role in this sequence of events. These events are related to
the underlying atherosclerotic disease of the patient with
the immediate problem of an acute myocardial infarction with
its ensuing complications, i.e., congestive heart failure.
As for the splenectomy, Dr. Bloor stated that it does lead to
increased susceptibility to bacterial infections, especially
S. Pneumoniae, H. Influenzae and some gram-negative enteric
organisms. He indicated that the overall actuarial risk of
sepsis in patients who have had splenectomy was about 7% in
the ten years following splenectomy and that about 25% of
splenectomy patients have a serious infection sometime in
their life but the frequency was highest within three years
after the splenectomy. He also indicated that the accessory
spleen found during surgery for removal an abdominal aneurysm
in 1981 was probably functioning normally and that between
1944 and 1981 the veteran did not have total absence of the
spleen. In relating this to the veteran’s case, he stated
that if the patient was at increased risk for bacterial
infections it would be after removal of the accessory spleen
not the removal of the “regular” spleen in 1944, however, the
10 year interval since the removal of the accessory spleen
made it unlikely that this put the patient at increased risk
at the time of the terminal hospital admission.
Analysis
The surviving spouse of a veteran who has died from a
service-connected disability or compensable disability may be
entitled to receive dependency and indemnity compensation.
38 U.S.C.A. § 1310.
The death of a veteran will be considered as having been due
to a service-connected disability when the evidence
establishes that such disability was either the principal or
a contributory cause of death. 38 C.F.R. § 3.312(a). The
service-connected disability will be considered as the
principal (primary) cause of death when such disability,
singly or jointly with some other condition, was the
immediate or underlying cause of death or was etiologic
thereto. 38 C.F.R. § 3.312(b); see also 38 C.F.R.
§ 3.310(a). A contributory cause of death must be causally
connected to death and must have contributed substantially or
materially to death; that it combined to cause death and that
it aided or lent assistance to the production of death.
38 C.F.R. § 3.312(c)(1). Generally, minor service-connected
disabilities of a static nature or not materially affecting a
vital organ, would not be held to have contributed to death
primarily due to unrelated disability. In the same category
there would be included service-connected disease or injuries
of any evaluation (even though evaluated as 100 percent
disabling) but of a quiescent or static nature involving
muscular or skeletal functions and not materially affecting
other vital body functions. 38 C.F.R. § 3.312(c)(2)
On review of the evidence, the death certificate and the
terminal hospital records of the Ohio Valley Medical Center
appear facially inconsistent as to the cause of the veteran’s
death. On the death certificate, sepsis alone was listed as
the cause of death. The final diagnoses on the terminal
hospital report were acute myocardial infarction with cardiac
arrest, acute respiratory failure secondary to cardiac
arrest, ischemic foot secondary to small emboli,
atherosclerotic occlusive disease of the popliteal artery,
congestive heart failure, coma with anoxic encephalopathy,
probable aspiration pneumonia, ventricular fibrillation and
diabetes mellitus, type II. Sepsis was not diagnosed. To
resolve this matter the Board sought an opinion from an
independent medical expert, Dr. Bloor.
Dr. Bloor expressed the opinion that, on the basis of the
supporting evidence, i.e., history of cardiac arrest and the
veteran’s collapse, the EKG and EEG traces and elevated
enzymes, there was no evidence of sepsis at admission. As
for the remainder of the hospitalization, Dr. Bloor explained
that development of pneumonia was not diagnostic of sepsis.
He then concluded that the cause of death was congestive
heart failure secondary to an acute myocardial infarction
with underlying atherosclerotic disease.
Moreover, Dr. Bloor’s opinion as to the cause of the
veteran’s death accounts for what was clearly the veteran’s
life threatening problem -- an acute myocardial infarction
with its ensuing complications, including congestive heart
failure. Sepsis as the cause of death as shown on the death
certificate does not account for the fact that the veteran
was admitted in critical condition following cardiac arrest
as witnessed by the emergency squad, that he remained
comatose until he died and that all the laboratory findings
were consistent with myocardial infarction and congestive
heart failure. As the terminal hospital records contain no
supporting evidence to establish the presence of sepsis as
explained by Dr. Bloor and as the there is no other
independent medical evidence, either by competent medical
opinion or finding, that establishes the presence of sepsis
during the veteran’s final illness, the Board rejects sepsis
as the cause of the veteran’s death as shown on the death
certificate.
As cardiovascular disease was not an adjudicated service-
connected disability during the veteran’s lifetime, the issue
is whether service-connected status can be established for
cardiovascular disease.
Under the statutory and regulatory principles of service
connection, in determining whether cardiovascular disease is
service connected the evidence must show that it was the
result of injury suffered or disease contracted in the line
of duty during service. 38 U.S.C.A. § 1110. This may be
accomplished by affirmatively showing inception in service,
38 C.F.R. § 3.303(a); by continuity of symptomatology,
38 C.F.R. § 3.303(b); by the presumption of service
connection for cardiovascular disease if the disease becomes
manifest to a 10 percent degree within one year from date of
separation from service, 38 U.S.C.A. § 1112(a); or by initial
postservice diagnosis beyond the one-year presumptive period
when all the evidence including that pertinent to service
establishes the disease was incurred in service, 38 C.F.R.
§ 3.303(d).
The service medical records are negative for signs of
cardiovascular disease and the reports of VA examinations
from 1946 to 1948 are negative for findings of disabling
cardiovascular disease. Cardiovascular disease in the form
of myocardial infarction in 1979 was first reported by
history during hospitalization in September 1984, when an
arteriogram revealed occlusion in the right popliteal artery.
In March 1986, cardiac catherization revealed coronary artery
disease. In the absence of any affirmative evidence showing
cardiovascular disease coincident with service and in the
absence of manifestations of cardiovascular disease in the
more than 30- year interval between service and 1979, there
is no positive evidence to link the veteran’s fatal disease
to service under the above principles of service connection.
Also, there is no evidence that any of the service connected
disabilities caused cardiovascular disease. 38 C.F.R.
§ 3.310(a).
As service connection has not been established for
cardiovascular disease and as the service-connected
disabilities have not been implicated as the principal cause
of death, the remaining issue is whether the service-
connected disabilities contributed substantially or
materially to death. As for the residuals of an abdominal
wound, involving Muscle Group XIX, residuals of a right thigh
wound, involving Muscle Group XIII, residuals of a left thigh
wound, involving Muscle Group XIV, and the for residuals of a
right flank wound, these were disabilities of a static nature
and did not materially affect a vital organ, and under
38 C.F.R. § 3.312(c)(2) are not held to have contributed to
death primarily due to unrelated cardiovascular disease.
As for the residuals of splenectomy, the appellant asserts
that it contributed to the cause of the veteran’s death.
Where the determinative issue involves either medical
etiology or medical diagnosis, competent medical evidence is
required to make the claim plausible. Grottveit v. Brown, 5
Vet.App. 91, 93 (1993). As a lay person, the appellant is
not competent to offer evidence that requires medical
knowledge so her assertion that the splenectomy contributed
to the cause of the veteran’s death is not credible. See
Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992) (lay
person not competent to offer evidence that requires medical
knowledge); see King v. Brown, 5 Vet.App. 19, 21 (1993)
(truthfulness of the evidence is presumed, except when the
fact asserted is beyond the competence of the person making
the assertion).
In support of claim, the appellant also testified that during
the veteran’s final illness Dr. Kuskin told her that the
veteran was having difficulty fighting infections due to the
lack of a spleen. She does not claim that any available
clinical record reflects this, but that Dr. Kuskin told her
of the relationship over the phone. Attempts to get
additional records from Dr. Kuskin have been unsuccessful.
In Robinette v. Brown, No. 93-985 (U.S. Vet. App. Sept. 12,
1994), reconsideration granted in part on other grounds (Oct.
21, 1994) (per curiam), the United States Court of Veterans
Appeals held that what a physician said and the layman’s
account of what he purportedly said is simply too attenuated
and inherently unreliable to constitute medical evidence.
Accordingly, the Board finds the testimony not credible. As
for her testimony that perhaps the aneurysms were related to
the splenectomy, again under the precedent opinions in
Grottveit and Espiritu, the appellant is not competent to
offer evidence that requires medical knowledge and the
testimony is not credible. An even more fundamental reason
for rejecting the statement, is that the medical evidence,
both the terminal hospital records and the opinion of
Dr. Bloor, do not implicate aneurysm as a cause of death or
as contributing to the cause of death.
Lastly, in the opinion of Dr. Bloor, the service-connected
splenectomy did not contribute to any fatal disease process.
This evidence is uncontradicted. Even the death certificate,
listing sepsis as the cause of death, did not attribute the
sepsis to the service-connected splenectomy.
For these reasons, the Board finds that the preponderance of
the evidence is against the claim that a service-connected
disability caused or contributed to the cause of the
veteran’s death.
II. Increased Ratings for Accrued Benefits
In a claim for accrued benefits, 38 U.S.C.A. § 5121(a) and
the implementing regulation, 38 C.F.R. § 3.1000(a), provide
that a veteran’s spouse may receive accrued benefits to which
the veteran was entitled based on the evidence in the file at
the date of death. In this case, while the veteran’s claims
for increased ratings were well grounded, see Proscelle v.
Derwinski, 2 Vet. App. 629, 632 (1992), he died before the RO
could schedule an examination. The medical evidence of
record since 1948, beginning in 1981 through 1991, dated
prior to his death is deemed in the file at death. As for
the appellant’s testimony in June 1993 and the April 1995
opinion from an independent medical, post-date-of-death
evidence, the Board finds the evidence acceptable as
verifying or corroborating evidence “in the file” at death.
See Hayes v. Brown, 4 Vet.App. 353, 358-361 (1993).
Disability ratings are rendered based upon VA’s Schedule for
Rating Disabilities (Schedule) as set forth at 38 C.F.R. Part
4 (1994). Where there is a question as to which of two
evaluations apply, the higher of the two is assigned where
the disability picture more nearly approximates the criteria
for the next higher rating. 38 C.F.R. § 4.7. In evaluating
disabilities of the musculoskeletal system, additional rating
factors include functional loss due to pain supported by
adequate pathology and evidenced by the visible behavior of
the claimant undertaking the motion, 38 C.F.R. § 4.40. Also,
38 C.F.R. § 3.321(b)(1) provides for extra-schedular ratings,
however, none of the service-connected disabilities present
such an exceptional or unusual disability picture with such
related factors as marked interference with employment or
frequent periods of hospitalization as to render impractical
the application of the regular schedular standards.
Splenectomy
The 30 percent rating for residuals of splenectomy is the
maximum schedular rating for the disability under Diagnostic
Code 7706. As there is no basis for an extra-schedular
evaluation, such as marked interference with employment or
frequent periods of hospitalization, considering the medical
evidence beginning in 1981 through 1991, the appellant’s
testimony and the opinion from an independent medical expert,
an increased rating for the purpose of accrued benefits is
not warranted.
Residuals of an Abdominal Wound, involving Muscle Group XIX
The 10 percent rating for this disability equates to moderate
impairment of Muscle Group XIX, muscles of the abdominal
wall, under Diagnostic Code 5319. The next higher rating
under the same diagnostic code requires moderately severe
impairment. Under 38 C.F.R. § 4.56(c), moderately severe
impairment of the muscles occurs when there is a through and
through or deep penetrating wound with debridement or with
prolonged infection or with sloughing of soft parts,
intramuscular cicatrization. Except for secondary closure of
the wounds, the service medical records contain few details
of the extent of the initial injuries. Historically,
however, all scars were firm, well healed and non-tender on
initial VA examination in September 1946 and on VA
examination in April 1947. In the absence of evidence of a
through and through or deep penetrating wound with
debridement or with prolonged infection or with sloughing of
soft parts, intramuscular cicatrization, the wound was
properly rated as no more than moderately disabling. As for
the medical records from 1981 to 1991 and the appellant’s
testimony, they are negative for documentation of any
functional impairment, including that due to pain, that
approximates to moderately severe muscle impairment.
Residuals of a Right Thigh Wound, involving Muscle Group XIII
Residuals of a Left Thigh Wound, involving Muscle Group XIV
The 10 percent ratings for these disabilities equate to
moderate impairment of the right and left thighs under Muscle
Group XIII, muscles of the posterior thigh, Diagnostic Code
5313, and Muscle Group XIV, muscles of the anterior thigh,
Diagnostic Code 5314, respectively. The next higher ratings
under the same diagnostic codes require moderately severe
impairment. The requirements for moderately severe muscle
impairment are contained in 38 C.F.R. § 4.56(c) above. Again,
the service medical records contain few details of the extent
of the initial injuries. However on initial VA examination
in September 1946 and on VA examination in April 1947, all
scars were firm, well healed and non-tender. And on VA
examination in May 1948, there was no atrophy, muscle loss,
limitation of motion or bone or nerve injury associated with
the scars on the thighs. In the absence of evidence of a
through and through or deep penetrating wound with
debridement or with prolonged infection or with sloughing of
soft parts, intramuscular cicatrization, the wounds were
properly rated as no more than moderately disabling. As for
the medical records from 1981 to 1991 and the appellant’s
testimony, they are negative for documentation of any
functional impairment, including that due to pain, that
approximates moderately severe muscle impairment of either
the right or left thigh.
Residuals of a Right Flank Wound
The noncompensable rating for this disability was based on
the criteria for rating scars on limitation of function of
the part affected, Diagnostic Code 7805. On initial VA
examination in 1946, the scars were found on the right chest
wall or flank. This anatomical region corresponds to the
thoracic muscle group under Diagnostic Code 5321 and the O
percent rating equates to slight impairment. The next higher
rating under the same diagnostic code requires moderate
impairment. Under 38 C.F.R. § 4.56(b), moderate impairment
of the muscles occurs when there is a through and through or
deep penetrating wounds of relatively short track and there
are signs of moderate loss of deep fascia or muscle substance
or impairment of muscle tonus and of definite weakness or
fatigue. Again, the service medical records contain few
details of the type of initial injury. After service, all
scars were firm, well healed and non-tender on initial VA
examination in September 1946 and on VA examination in April
1947. And on VA examination in May 1948, the scars on the
right flank were described as superficial. In the absence of
signs of moderate muscle impairment, the noncompensable
rating was proper. As for the medical records from 1981 to
1991 and the appellant’s testimony, they are negative for
documentation of any functional impairment, including that
due to pain, that approximates moderate muscle impairment.
For these reasons, the preponderance of the evidence is
against the claims of increased ratings for the purpose of
accrued benefits.
ORDER
Service for the cause of the veteran’s death is denied.
Increased ratings for the veteran’s service-connected
disabilities for the purpose of accrued benefits are denied.
THOMAS J. DANNAHER
Member, Board of Veterans’ Appeals
The Board of Veterans’ Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans’ Appeals granting
less than the complete benefit, or benefits, sought on appeal
is appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the agency
of original jurisdiction on or after November 18, 1988.
Veterans’ Judicial Review Act, Pub. L. No. 100-687, § 402
(1988). The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision
which you have received is your notice of the action taken on
your appeal by the Board of Veterans’ Appeals.
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